Opinion 13-64

June 13, 2013

Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         Although a judge is disqualified from presiding over matters involving his/her campaign treasurer’s law firm during the judge’s election campaign, the disqualification is subject to remittal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(b)(i); 100.3(E)(1)(b)(iii); 100.3(E)(1)(d)(i); 100.3(F); Opinions 12-111; 10-86; 09-138; 08-15; 97-129 (Vol. XVI).

Opinion:

         A judge who is an announced candidate within his/her window period says he/she is considering appointing a lawyer as his/her campaign treasurer. The judge anticipates having certain disqualification obligations if he/she selects this lawyer because the lawyer is an associate at a law firm that occasionally appears before the judge. Indeed, the judge advises the law firm currently has cases pending before him/her, although this lawyer is not personally involved in these matters. Therefore, the judge asks if remittal is available during the judge’s campaign, when the “firm appears on a case on which [the lawyer] has not worked.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must therefore disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]). In certain circumstances, the judge may “disclose on the record the basis of the judge’s disqualification” and permit the parties to consider remittal (22 NYCRR 100.3[F]).¹

         The Committee has previously advised that, during the pendency of a judge’s election campaign, the judge must disqualify him/herself in any matter involving the law firm of the judge’s campaign coordinator or campaign finance chair (see Opinion 97-129 [Vol. XVI]).² It appears, however, that the Committee has not specifically addressed whether remittal is available during this period (cf. Opinion 97-129 [Vol. XVI] [answering the question definitively only for the two years after the campaign is concluded]).

         Rule 100.3(F) forbids remittal of disqualification in four scenarios. That is, remittal is prohibited if the judge: (1) has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]); (2) knows that he/she served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]); (3) knows that he/she served as a material witness concerning the matter in controversy (see 22 NYCRR 100.3[E][1][b][iii]); or (4) knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person, is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][i]). Because remittal is not available in these circumstances, the judge must disqualify him/herself from the proceeding (see Opinion 08-15; 100.3[F]).

         In addition, the Committee has advised that remittal is not available if any party is appearing without counsel (see e.g. Opinions 12-111; 09-138) or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see e.g. Opinions 12-111; 10-86).

         Provided that none of those conditions is implicated under the specific facts presented, the Committee concludes that a judge’s disqualification is subject to remittal, even during the judge’s election campaign, when the judge’s campaign treasurer’s law firm appears before the judge.

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     ¹ Where permitted, remittal is a three-step process: “First, the judge must fully disclose the basis for disqualification on the record... Second, ... without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138; 22 NYCRR 100.3[F]).

     ² The principles set forth in Opinion 97-129 (Vol. XVI) apply to “campaign leaders” generally, including one who performs the functions of a campaign treasurer, regardless of the specific title used.